February 08, 2008

Tyranny

"The attorney general yesterday rejected growing congressional calls for a criminal investigation of the CIA's use of simulated drownings to extract information from its detainees, as Vice President Cheney called it a "good thing" that the CIA was able to learn what it did from those subjected to the practice. (...)

Testifying before the House Judiciary Committee, Attorney General Michael B. Mukasey said Justice Department lawyers concluded that the CIA's use of waterboarding in 2002 and 2003 was legal, and therefore the department cannot investigate whether a crime had occurred.

"That would mean that the same department that authorized the program would now consider prosecuting somebody who followed that advice," he said."

A transcript of the relevant exchange is here; transcript of an important followup is here.

Personally, I can't see why the fact that someone in the Justice Department signed off on something means that they cannot now investigate. And I can see a lot of reasons for not saying that, like the fact that that would mean, in practice, that if you had people in the DoJ who were willing to sign off on whatever the President wanted, even if it was patently illegal, no one could ever be prosecuted for following those orders. Just get someone in DoJ to make some idiotic ruling, saying something patently false, and voila! no legal jeopardy! See how easy?

This means that if the Justice Department were sufficiently corrupt or compliant -- and does anyone want to argue that it wasn't, under Alberto Gonzales? -- the administration could do whatever it wanted without worrying its little head about the law. David Kurtz at TPM:

"We have now the Attorney General of the United States telling Congress that it's not against the law for the President to violate the law if his own Department of Justice says it's not. (...)

President Bush has now laid down his most aggressive challenge to the very constitutional authority of Congress. It is a naked assertion of executive power. The founders would have called it tyrannical. His cards are now all on the table. This is no bluff."

He adds a note from one of his readers:

"It's not just that the Attorney General's position is that a DOJ Order makes the subject activity legal but that, as Nadler brought out, there is now no recourse to a judicial test, either criminal (through refusal to prosecute) or civil (through the state secrets privilege based solely on a DOJ affidavit). The DOJ is entitled to take whatever position it wants, however self-serving and unitary, but now there is no avenue for judicial review and so that is the end of the story."

That pretty much sums it up. And no, I don't think I'm overreacting. When the Executive asserts the right to disregard the will of Congress without any possibility of judicial review, that is tyranny.

And don't say that our poor government officials have no choice but to rely on the DoJ's rulings about what is legal and what is not. We don't accept this excuse from anyone else. When mafia hit men assure us that according to their lawyers, members of other crime families are not persons within the meaning of the homicide statute, or corporate CEOs tell us that their lawyers advised them that cyanide does not count as a toxic substance for the purposes of the Clean Water Act, we do not say: oh, well, that's OK; just don't do it again. We say: too bad. You should have hired better lawyers. Have fun in jail.

While I don't think that whether or not waterboarding is legal is a tough call, I do think that it must be difficult to be a CIA agent working without good legal guidance. But that's not a good reason to set a precedent according to which any administration can do whatever it feels like if it can get someone in the DoJ to sign off. The administration should have hired good, honest lawyers, not people who would tell them whatever they wanted to hear. There are a lot of reasons for hiring competent, honest lawyers, and protecting government agents who genuinely want to stay within the bounds of the law is one of them. The Bush administration did not do this, and because it didn't, it let its own people down and betrayed their trust.

In some cases (not including waterboarding), non-lawyers in the government might have done things that they believed to be legal because they trusted the DoJ. It might seem unfair to hold people who are not lawyers legally liable for this administration's failures. However, as I said above, we don't accept this excuse from other people; and government agents are the last people we should exempt from the rule of law. Adding CIA interrogators to the already long list of people who might pay the price for the administration's cavalier attitude towards the law is better than giving up on the rule of law and our constitutional system of government.

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Personally, I can't see why the fact that someone in the Justice Department signed off on something means that they cannot now investigate.

seems like impeccable logic to me. as a friend on email noted to me, they said earlier there was no crime, so there's no need to investigate if there is.

see how that works?

(in all seriousness, the only way to fix this is to send someone to jail. or perhaps politically punish those responsible. either way, there has to be some sort of consequences, or else it will just re-surface again in 15 years when Rasputin neocons re-emerge and fill the executive branch.)

They sound so much like the civic and religious officials of the seventeenth century congratulating themselves for what a great job they did torturing the confessions out of all those thousands of witches it makes my skin crawl.

"Negroponte's comments, which were seen as confirmation that waterboarding had in fact been used before that, were not cleared beforehand and caught White House officials off guard, according to the senior administration official. "It was an accidental disclosure," said the official. It also forced a reassessment of whether the administration should at least publicly confirm Negroponte's remarks, if only to reap whatever public-relations benefit could be derived from the slip."

"I do think that it must be difficult to be a CIA agent working without good legal guidance."

Just for the record, nobody in the CIA calls themselves an "agent." I wince every time I see it. It's a term from movies and novels, not from reality.

Say "CIA employee" or "CIA officer," or "analyst."

If you want to specifically talk about someone in the Clandestine Service, say "CIA officer." In turn, an Operations field officer will develop and run sources.

But "CIA agent" is language from a cartoon. It's only suitable for discussing fiction, or undermining confidence in the writer's knowledge of the CIA, which probably is not what you want to do, which is why I mention this.

Otherwise, I agree, of course, and just am so so sad that there's no precedent of -- what would the idea be? -- maybe something like appointing an -- the term is on the tip of my tongue -- an eepsider prestidigitator?

No, that's not it.

An oopsie-doopsie prognositicator?

No, not quite.

An... outside proseconniption fit?

No, but closer.

An... outside prosec...utor?

Is that it?

By jove, that's it!

If only there were some precedent for that sort of thing, for appointing someone to investigate an administration.

Perhaps a review of the Classics. The Iliad is a good book, Homer stops early, but foreshadows the slaughter of Troy’s men and enslavement of Troy’s women.

That 3rd Punic War was a doozie. Still looking for descendants of the Carthaginians for a comment.

They marched the Armenian men (duped into believing that they had been enlisted) into the desert and shot them. The women were locked in houses and burnt alive, the ones stumbling out the windows were shot. Reportedly over a million souls, not that long ago.

Nobody cares about starving tens of millions of Chinamen to death.

Or the gulag.

Darfur really isn’t important since it’s just Muslims killing blacks.

But drip water on ‘terrorists’ (who probably deserve it) three times in five years.

Tyranny. There are elements in the modern left that I will never understand.

Bill: please don't tell me what I do and don't care about. For what it's worth, I have stood at the edge of a cliff over which Armenians were herded. That was sometime around the time I saw victims of the Anfal campaign flooding across the Turkish-Iraqi border. I have written about Darfur, the LRA in Uganda, the Congo, the effects of Mugabe's dictatorship, the Rwandan genocide, and all sorts of other things.

Speak for yourself. Some of us have been screaming bloody murder about various Chinese atrocities for most of our lives.

Darfur really isn’t important since it’s just Muslims killing blacks.

Because, god knows, no-one here has said a damn thing about Darfur. Wow. The silence here has been just deafening.

But drip water on ‘terrorists’ (who probably deserve it) three times in five years.

Ah, the open-minded approach: if it happened to Other People it must have been ok, because our government said so. And it couldn't have been that bad anyway, because our government said so. And they would never, ever lie.

Yeesh. What the hell happened to that defiant spirit of American individualism that used to irk me so? When did we become such submissive, subservient bedwetters? [Present company excepted, naturally.] When did we lose that tiniest of gumptions to actually make sure the government is telling the truth?

When we pinko-bolshie-dirty-f***ing-hippie-liberal types are the ones remembering not to blindly trust the government, you know things have gone seriously wrong.

I could give cites, but I'm really unenthused at present at doing other people's work for them, so I'll simply note that if Bill, or anyone, bothered to google my blog, they can find plenty of posts from me on Darfur, on Mao's crimes, and on Stalin's crimes. Also some at Winds of Change, for that matter.

I could give cites, but I'm really unenthused at present at doing other people's work for them, so I'll simply note that if Bill, or anyone, bothered to google my blog, they can find plenty of posts from me on Darfur, on Mao's crimes, and on Stalin's crimes. Also some at Winds of Change, for that matter.

Once again, I made a response, and the software won't post it. Not only that, but it won't post it with even one link, no matter what I put in the ID fields, and that the Typepad cookie is deleted.

Since the only point of the comment is the links, I'm waiting for someone to uncork it. I've written the kitty, Slart, Hilzoy, and Sebastian.

I trust this is only a temporary condition, because if I can't post links, and have to write email and wait a day to get every comment posted, I can't post here any longer.

As it is, the 2-link minimum is pretty intolerable. Not to mention my being stuck having to delete the cookie, and change my email address for each comment, combined with having to make multiple captcha attempts almost every time, resulting in the need to redelete the cookie each and every time.

Out of semi-idle curiosity, is there a reason Bill has license to keep spewing here?

Hilzoy: "Tyrant" is entirely warranted. Of course, it was really warranted as of December 2000; what we're seeing now is simply their unfolding sense of how much they think they can get away with in public. But the surveillance and planning for unjustifiable war and all the rest began immediately, it's just that it took time for us to about some of us.

I could give cites, but I'm really unenthused at present at doing other people's work for them, so I'll simply note that if Bill, or anyone, bothered to google my blog, they can find plenty of posts from me on Darfur, on Mao's crimes, and on Stalin's crimes. Also some at Winds of Change, for that matter

Google on "site:amygdalagf.blogspot.com" and "darfur."

90 hits.

Google on "site:amygdalagf.blogspot.com" and "stalin."

81 hits.

Google on "site:amygdalagf.blogspot.com" and "mao."

30 hits.

I first posted on Darfur on April 08, 2004.

I'm sure that Bill was posting earlier, has posted more than 90 times on Darfur, and had more readers, and did a better job than I did.

hilzoy, i am reluctant to agree that lower ranking government agents must be held liable for following illegal orders. they are, after all, required to follow directives and to rely on their superiors to exercise reasonable judgment. obviously, there are limits on this sort of immunity. for example, it would clearly be criminal for an interrogator to rob a bank and shoot tellers simply because s/he was ordered to do so. one can argue about whether waterboarding is so obviously illegal that it falls on the side of the line leading to liability for those who obey orders to engage in it. but what is beyond any doubt, and is also many times more troubling than the interrogators' obedience, is the odious nature of the high-ranking "deciders'" legal judgments. those are truly criminal.

publius suggests that "someone" needs to be sent to jail. but should some random dude on the street be thrown in jail? obviously not. a low-level government agent? i would say no. such scapegoating is the province of the sorts of tyrants you rightly accuse bush/gonzales/mukasey of being. the fault lies with those who declared, utterly implausibly, that waterboarding is permissible. and it is they who should pay. we've made the mistake of aiming too low several times when scandals have struck this administration, and i think it would be a shame to repeat that mistake.

by the way, liability similarly runs to the most high ranking officials of a corporation, say, when it follows bad legal advice. it's not the guy who dumps the cyanide who pays, it's those who ordered the dumping (and often it's not even them, but rather only the company, and i leave it to you to figure out who really pays for that). i'd also caution you to not take this analogy to far, because it is pretty rare for any individual to pay much of a price for following bad legal advice. even when some prominent figure is "brought down", that often means that they are ridiculed and lose several of their many millions of dollars. it is rare indeed (though not entirely unheard of) for anyone to be made destitute or to be imprisoned. it is therefore somewhat misleading to argue, on the basis of mild civil penalties for corporate malfeasants, that criminal liability should attach to governmental bad acts, especially those committed by mere followers. of course, many of us would resolve this discrepancy - at least in part - by enforcing the criminal laws that are often broken when corporate excutives dump toxins in our water, defraud us into buying their junk securities, withhold potentially life-saving information, etc. but that's a different discussion entirely.

"hilzoy, i am reluctant to agree that lower ranking government agents must be held liable for following illegal orders."

Could you quote where Hilzoy said that that should be done? I may have missed it.

The question of who should or shouldn't be punished, and what might be appropriate, should someone be punished, isn't a question that one logically approaches before investigating whether a crime was committed.

We don't, as a rule, pronounce sentence first, then decide whether or not to investigate.

There seems to be some confusion about this.

As a rule, we do the investigation first. Let's start there, shall we?

Assuming Bill does have point to make - and is not simply being an asshat troll - despite the impressive array of classical references he musters to try to dismiss hilzoy's point in her post: one fundamental flaw in his "rejoinder" remains. And for Bill's sake, I'll try to keep the rebuttal framed in simple, easy-to-understand terms:

We are the United States of America.
We are supposed to be better than this.

Despite Bill's glib list of historical horribles, it is scarcely a radical or outre notion to suppose that the President of the United States (or any agency of the Executive Branch) ought not to hold himself/itself above the law, or arrogate unlimited and unreviewable powers to himself/itself, or reserve to himself/itself the absolute right to manipulate the definition of "The Law" for his/its convenience.
These are the sort of attitudes that are, historically, unexceptional when talking about the actions of Roman Emperors, Ottoman Sultans, Chinese dictators or Sudanese warlords: from the President of the USA, we deserve better.

And since you're so fond of historical citations, Bill: I'd suggest you go back and study some American history - 1789 and the Founders' notions of controlled, self-balancing government would be a good place to start.

But drip water on ‘terrorists’ (who probably deserve it) three times in five years.

Well, OK, Bill: since you seem to view the practice of waterboarding in such a benign light, why don't you volunteer to undergo it? Maybe you can video your "enhanced interrogation" session, and post a link to it here so that we can all share!

If Congress cannot get an investigation about waterboarding and other techniques that may or may not have been used, then why is the White House asking for a congressional bill to protect telecommunication companies from lawsuits for snooping?

There is something amiss and these two examples show how relative the arguments are for executive power in cases of national interests. Obviously DOJ signed off on both examples, but then why is one of these being sought out for congressional forgiveness and not the other?

As I had said above, it is a case of relativism to enable the executive branch to have its cake and eat it too.

I've concluded for some time now that Bush is pathological, because of the utterly bizarre, dictatorial and fundamentally un-American positions he has taken on torture and countless other issues.

Thus, when I spied Bush on the Couch: Inside the Mind of the President by Justin A. Frank, M.D. in B&N the other day, I was instantly attracted to it.

It's a fascinating, and horrifying, read. I trust no one will be surprised by Frank's primary (but by no means sole) diagnosis of our President, i.e. that he's a megalomaniac.

Seems to me to be the best explanation yet for this sicko's grotesque departure from basic norms of civilized behavior. But you have to read the book to fully appreciate how utterly sick "W." is. I strongly recommend it.

Hilzoy: That pretty much sums it up. And no, I don't think I'm overreacting. When the Executive asserts the right to disregard the will of Congress without any possibility of judicial review, that is tyranny.

Doesn’t Mukasey’s statement amount to admission that DOJ can’t investigate itself? Doesn’t that then lead to an independent special counsel being the only solution? If Mukasey doesn’t appoint one - isn’t it then the responsibility of Congress to act?

It seems to me that the ball is in the Senate and/or House Judiciary Committee’s court.

Nothing’s going to happen before the election though. Democrats won’t risk stirring up too much crap before November.

I think Marty is probably right. Of course, putting low level guys in jail shouldn't be the main task anyway. I'd like to see an investigation, though, of the conspirators who got OLC to issue patently fraudulent analyses in order to immunize those functionaries.

I'd also like to see a waiver of sovereign immunity for civil suits arising from violations of the CAT.

Obviously, only a new administration can do this. Judge Mukasey had a choice to make when he took the job: he could either be what he represented himself to be -- following the law wherever it led and thus become a pariah in the Administration -- or he could destroy his reputation utterly. He's chosen the latter.

Marty Lederman makes the points I was going to make in his first link, only with actual legal cites and more detail. Although the idea that Mukasey is pushing that the DOJ cannot even investigate seems wrong to me.

According to someone who should know, the CIA went to the DOJ and asked them what types of interrogation techniques would be lawful to use on KSM, et al. In reliance on this advice they proceeded with waterboarding the three prisoners. Now, the CIA has its own lawyers, of course, who could have decided that the OLC legal analysis was unreasonable, and refused to proceed. They did not, as they obviously got what they were looking for. As Prof. Lederman notes in his first link, we want the CIA to be able to rely on the legal analysis of the OLC as to what is lawful and what is not, and not to have to second guess it and wonder whether the OLC lawyers are political hacks providing whatever the executive wants.

Judge Mukasey had a choice to make when he took the job: he could either be what he represented himself to be -- following the law wherever it led and thus become a pariah in the Administration -- or he could destroy his reputation utterly. He's chosen the latter.

Very very true. Seems to me anybody who joins this Administration, especially now, has to have some kind of crazy Faustian deathwith for power at the expense of reputation. Muk has reduced himself to the status of a ridiculous hack whose positions defy law and common sense. In other words, Bush got just the AG he wanted to replace Gonzo.

I seem to recall that reasonable reliance on a government attorney's opinion is a defense for that particular person. So, prosecuting the CIA agent pouring the water might not be possible.

However, that wasn't the only crime committed. How about prosecuting the attorney who knowingly gave bad advice on his boss' orders? If the boss gave the order to write an opinion justifying a blatantly illegal action, their subsequent reliance on that opinion wouldn't be reasonable - they could be prosecuted as well...

Bill, way to totally miss the point of hilzoy's post. Believe it or not, it was not really about waterboarding. If you to somehow or other become a moral relativist, like conservatives have always blamed liberals to be, go ahead.

However, that is not what hilzoy was talking about. She was talking about tyranny, which can be defined as creating an environment where what ever the leader wants to do can be made legal without recourse to the courts or the legislature and with no future accountability.

Although I have some sympathy (but only some) for the lower level CIA officers who may have actually participated in waterboarding who knows how many individuals, the real issue here is not about prosecuting that level. It is about exposing the whole process which led up to this activity.

It is about holding the Yoos, Addingtons and Gonzaleses to account, as well as those who pushed to get that kind of opinion.

The precedent that Mukasey is setting bodes very poorly for the future.

Point of Order, Redhand: Whatever each of us feels about Bush, Dr. Justin Frank didn't in any meaningful way "diagnose" Bush at all, any more than Bill Frist diagnosed Terri Schiavo. A doctor doesn't diagnose someone they've never examined. He has speculated, which is fine, but let's call of what it is.

After that, any CIA officers/contractors that engaged in torture can be prosecuted, regardless of Mukasey and his idiotic opinions.

Unless Bush issues blanket pardons, and I suspect he will, on his way out the door.

But for the telecoms, presidential pardons don't get them out of civil liability, so they're STILL on the hook next year.

I'm not sure about how this interacts with the extraconstitutional "State Secrets BS Defence": can the cases be reinstatated, with the SSDBS withdrawn by the new admin? Maybe; I don't think there's been any precident on this.

hilzoy, i am reluctant to agree that lower ranking government agents must be held liable for following illegal orders. they are, after all, required to follow directives and to rely on their superiors to exercise reasonable judgment.

Ah, the famous "orders are orders" defense? I don't buy it. I don't think they should be solely responsible, but the people doing it knew what they did and should be prosecuted too.

There is an description of a rightwing guy who thought the waterboarding wasn't too bad and did it to himself.

Seriously, I determined to give this a try, see how bad it was: Settle the debate authoritatively. Torture, or not?

I figure I would be a good test subject. I am incredibly fit and training for a 100 mile endurance run. The main thing about such an event is ability to tolerate pain. I am good at this. I am trained.

I also have experience with free-diving from my college days. I once held my breath for 4 minutes and two seconds. Once, while training as a lifeguard I swam laps without breathing until I passed out, so that I could know my limits.

The Spanish Inquisition knew this. It was one of their favorite methods.

It's torture. No question. Terrible terrible torture. To experience it and understand it and then do it to another human being is to leave the realm of sanity and humanity forever. No question in my mind.

I wonder though if there was bipartisan support of tactics seen at Abu Ghraib (ala Chuck Schumer's support for Mukasey) going back to Vietnam when under LBJ or during Cofar Black's CIA reign during the Clinton years. I recall seeing a video of American and South Vietnamese soldiers using controlled drowning of Viet Cong suspects. Controlled drowning was widely used by Americans against of the Filipino insurrections of the early 20th century. And it was known as a Third Degree technique under the Gestapo, when a suspect was allowed to live after interrogation. And we know the CIA did consult with former Gestapo people to see how to control the communist movement in Western Europe.

The tyrannical nature of GWBush is beyond question buy why should we prosecute low level employees such as the few handful of miserable GI's prosecuted in the Abu Ghraib
scandal that like Mai Lai wouldn't have been made public w/o the reportage of the brave Seymour Hersh. Dick Cheney said himself that the use of 'waterboarding' torture to fight the 'war on terror' is a "no-brainer" on Meet the Press. Rumsfield explicitly said that severe techniques are needed to root out insurgents in Iraq. So expection anything other than what follows in Abu Gharaib or the numerous atrocities by contractors like Blackwater...is indeed a 'no-brainer'. Guilt is at the top, not at the bottom esp. with 'bad apples' in the military, CIA or proxies.

Let's not forget who deployed these techniques and unleashed the 'dogs of war': those at the top. But to expect a future administration to legally go after those who committed torture in the future is wine soaked hopefulness. Just as Democrats such as Schumer and Hoyers were collaboraters in the S and L deregulation disaster, we Democrats know that many in our party will turn away from the plight of the suspected terrorists who were tortured as they are not a voting bloc of importance. Better to adopt a McCain attitude of just say no to torture and don't let it happen again. And remind folks of the tyranny of GW Bush for posterity. Repeat the message and never forget.

OK OK, "diagnose" is the wrong word, but Frank did use a methodology that the U.S. Government itself uses in evaluating foreign leaders: use publicly available information to develop psychological profiles of them in an effort to predict their future behavior. It works for me, and it's a fascinating read.

I think that reliance should be considered a mitigating factor in sentencing, but should not govern whether or not a crime was committed.

I would also observe that OLC is not the only set of federal lawyers in town. If OLC tells CIA "hey, you can torture," then CIA's own counsel should look at the same issue, with an eye to protecting its own people, and make its independent assessment. Which, after a couple of its torturers have done prison time, will be a very sincere and independent assessment indeed.

Alternatively, as I suggested in comments at Marty Lederman's post, only PUBLIC opinions from OLC should be reliance-worthy. I realize they're not usually published, but openness is the price we have to pay to have a government that OBEYS THE LAW.

gary, see hilzoy's final paragraph (though the entire post also amply supports my reading). it is clear that she contemplates holding "non-lawyers in the government" and "CIA interrogators" "legally liable" for waterboarding.

i am not offering an opinion on the sentence to be imposed, but rather on who should be prosecuted. the question of who should or shouldn't be punished is essential to the definition of a crime. this is about how the crime should be conceptualized, and it is a basic and preliminary question. it will inform the scope and focus of any investigation. at any rate, no fair reading of hilzoy's post leaves any doubt that she was writing, at least in part, about whom to punish. and for the reasons i gave above, we should not come down very hard on non-decision-making officials and we should scrutinize and punish decision makers for sanctioning/soliciting criminal behavior.

moreover, hilzoy's analogy to corporate misbehavior founded on erroneous legal advice does not support criminal liability for mere interrogators. the sanction is rarely criminal, is usually a mere slap on the wrist, and is never imposed on low level employees who were just following orders (for reasons akin to the "scope of employment" defense). if anything, the analogy supports my view that liability should be reserved exclusively for the decision makers.

Lets look on the bright side, here. If a democrat takes the presidency in '08 she can put together a DOJ finding that allows all the neocons to be rounded up and shipped to Gitmo. There they will enjoy lovely weather, nice food, and waterboarding until they confess to a capital crime. Line 'em up, shoot them - tadaa! Karma, baby!

As a low ranking federal employee, I'm scared spitless at the prospect of being held criminally liable for believing a lawyer who lies (or is simply mistaken) about an interpretation. I'll grant you I'm not torturing anyone and I changed jobs because I couldn't support the moral scope of what I was doing, but I never had reason to doubt I was safe legally because the Office of Council said I was.

I'm a scientist and an engineer. I'm not a lawyer. How liable should I be for not having gotten that JD?

I would much, much rather see the lawyers who gave this advice prosecuted than anyone who relied on that advice. I also agree with Mart Lederman that insofar as the DoJ's official position is that waterboarding was not illegal when (they have admitted that) it was done, of course they shouldn't prosecute, or probably even investigate. And I think it is very important that people be able to rely on the representations of the government about what is legal.

That said, I think we need to ask what is more important: (a) people being able to rely on government representations of legality, or or (b) preventing the Executive from being able to do whatever it wants without judicial review. I meant, in my piece, to acknowledge the importance of (a), but to say: (b) matters even more.

(Footnote: there's something deeply strange about Marty Lederman expressing trepidation about disagreeing with me on a point of law. I'm an amateur here. And while I was writing this, and thinking about the situation of someone relying on DoJ opinions, I was imagining myself being told that X, which seemed illegal, was actually not, by someone like Marty Lederman.)

If you are the kind of person who cannot tell that the act you are engaged in (waterboarding) is torture, then you are *exactly* the kind of person who should be behind bars to protect the rest of society

This applies to all those who sanctioned, signed off, legitimised or executed these orders

WSJ: The CIA's secret interrogation program has made extensive use of outside contractors, whose role likely included the waterboarding of terrorist suspects, according to testimony yesterday from the CIA director and two other people familiar with the program.

well hilzoy, you can at least take solace in the fact that marty was not saying that waterboarding is not illegal, but merely that because the DOJ thinks that it is not illegal we cannot possibly expect DOJ to investigate or prosecute it as a crime. this is why i think marty's trepidation had less to do with the fact that he was disagreeing with you (not to be done lightly, for sure) and more to do with the fact that he was supporting DOJ's position (if only on the ground that DOJ's insanity excuses it from acting responsibly).

i completely agree that the more important thing is to ensure that executive actions are subject to judicial review. that is why i took no issue with that part of your post. however, there are very different ways in which executive criminality can be dealt with, and i perceived one of your concerns about the failure to hold the executive accountable to be that the underlings should not evade liability. that, i think, is a misplaced concern. or a comparatively trivial one, at best.

i would also like to point out that DOJ's position, as i understand it (and i may well be wrong on this point, and if so please disregard) is not even that it currently deems waterboarding to be legal and therefore not the proper subject of an investigation, but rather that it once deemed waterboarding to be legal and therefore never the proper subject of an investigation. that distinction is huge, because it means that a subsequent AG (or even administration) could not prosecute what it considers flagrant criminal conduct of a prior AG if the former AG believed (in good faith, etc.) that the conduct was actually legal. to be able to grant oneself immunity in that manner is scary, and it should not be permitted.

The CIA's secret interrogation program has made extensive use of outside contractors....

It's just the market productively allocating scarce resources by fulfilling the demand for torture at an appropriate price. Any attempt to interfere with the torture market will just misallocate resources to less productive pursuits, impoverishing us all.

As a low ranking federal employee, I'm scared spitless at the prospect of being held criminally liable for believing a lawyer who lies (or is simply mistaken) about an interpretation. I'll grant you I'm not torturing anyone and I changed jobs because I couldn't support the moral scope of what I was doing, but I never had reason to doubt I was safe legally because the Office of Council said I was.

As an American citizen, I am sympathetic to your situation.

However, given the precedent established at Nuremberg, I must warn you that an international tribunal would very likely be rather more hostile to your argument. They would likely be even less sympathetic to a CIA employee, or God forbid, a Blackwater contractor accused of torture.

The course of international law since 1945 has been pretty clear on war crimes. George Bush ignored this at his -- and our government employees' -- peril.

Bill, is it your position that our government must murder several hundred thousand innocent Americans before there is anything to complain about? Why? If not, what ARE you trying to say? You seem to like history; can you name a case in which a government took on absolute powers that did not end in mass murder? Must we wait until the smoking gun is a mushroom cloud?

Speaking of word choice, how do you feel about Thomas Jefferson's use of the words "tyranny" and "tyrant" in the Declaration of Independence? Too pinko for you? Yet, George III had not, at that time, killed more than a handful of Americans. Our Congress's complaints amounted to: he has run roughshod over the rule of law and our rights. Sound familiar?

So, Bill, where do you stand? Are you a lickspittle slave so long as your masters don't kick you too terribly hard, or do you have the the birthright of Americans, the guts to limit the government? If the former, please do us all the favor of moving to an already-declared dictatorship while the rest of us work to salvage this democracy.

I live for the day when Hilzoy responds to Bill as follows, using waterboarding as an example:

"You know, Bill, after thinking for a moment about your objections to my oversensitivity about waterboarding and the larger issue of the rule of law, I must admit you are right.

Sometimes I wake up in the morning and survey in my mind's eye the oceans of blood spilled throughout human history and, against my better instincts and these silly ethical constructs I've made of whole cloth, I think to myself, "Waterboarding, schmlarterboarding, America is an exceptional piker when it comes to getting down to business and showing people what for. In fact, truth be told, sometimes I'm in a mood to go next door and torture the neighbors, who I suspect may be Carthaginian, instead of going to work and standing in front of a class of innocents who take this ethics business a little too seriously, and get this, they think I really care!

After all, if the Achaians can see their way clear to hacking a goodly part of Trojan humanity into pieces, and vice-versa, over some silly teenaged girl's boy trouble, who am I to hold my nose over a little aquatic choking and spluttering.

The Third Punic War, you say. Tell me about it. I blogged my heart out over the FIRST Punic War and don't get me started on the second one. By the time they got to the third one, I'd had it and decided to let them have at it.

Besides, have you ever met a Carthaginian? A head-strong people who scoffed, scoffed I say, at my ethical nitpicking. Well, screw them, the ingrates.

By the way, you're wrong that there are no Carthaginians. Every single captor we've waterboarded has admitted to being Carthaginian. That, and the Chicago fire, the shots from the grassy knoll, writing the script for the movie "Ishtar", and sneaking purgatives into Dick Cheney's hummus.

Which, need I mention, proves your point once again.

Quickly. Armenians? They should be so lucky to be waterboarded.

Millions of Chinamen? Tell me what they did to deserve it and I'll drop my niggling. Besides, no Chinawomen were involved, so what's the downside?

The gulag? Listen, once Solzhenitsen got a load of American daytime T. V., he thought picking bugs out of frozen bowls of mystery soup was heaven. Plus, how many 1000-page novels about human suffering can you get out of the Jerry Springer Show. I'm told near the end of his stay in Vermont, he was begging to be waterboarded rather than being forced to sit through one more meeting of the city fathers as they discussed where in town to put the second blasted parking meter.

He was half ready to pull a Raskolnikov and start bludgeoning old women.

Darfur? Other than rhyming with "so what", your point was?. Guantanamo their butts and see how they like THAT!"

xanax: "Hilzoy for President."

Hilzoy: "Just shoot me now."

I can see the Secret Service is going to have its hands full.

Slart: "I don't have time to drive to see the shrink."

Why drive when you can have your mind read for free right here? What do you wanna know? ;)

Never mind Bill; where are the presidential candidates on this? All three major contenders are members of the Congress, which has powers to investigate, hold in contempt, and impeach members of the Executive who break the law. And any of them, should they win, will have direct authority over the Justice Department to investigate and prosecute those who authorized, ordered, and performed torture. (Any statute of limitations, if it exists at all for such crimes, presumably extends well past next January.)

All three major candidates claim to be against torture. We should ask each of them what they plan to do about this, and not let them avoid answering.

Respectfully, Hilzoy, your analysis misses at least two key issues, and your extreme rhetoric ("tyrant") is not warranted here. They are both revealed by the following assumption that you make, which is incorrect:

corporate CEOs tell us that their lawyers advised them that cyanide does not count as a toxic substance for the purposes of the Clean Water Act, we do not say: oh, well, that's OK; just don't do it again. We say: too bad. You should have hired better lawyers. Have fun in jail.

No. A criminal conviction usually requires intent to commit the elements of the offense -- mens rea. Accordingly, the "I was relying on my lawyers defense" can be a good one, if you relied on your attorneys advice that your actions did not constitute an element of the offense and your reliance is reasonable. (Keep in mind that the foregoing is a rough thumbnail sketch.) Indeed, for who followed the Conrad Black case in the US, this was Mark Kipnis' primary defense to charges of fraud: I was relying on the lawyers for what should (or should not) go in an SEC disclosure. Such a defense is, and should be, a valid one. Your post, however, assumes this out of existence.

But there's a second, more important issue that your post also ignores: estoppel. As a general rule, we don't want the DOJ to say that X is illegal and then, reversing itself, go back and prosecute everyone who followed its advice. The government can't toss someone in jail by taking both sides on an issue of criminal law. So the second question is whether the DOJ is legally able to prosecute someone for actions that they formally approved. (The "entrapment" defense is an unrelated, but it's conceptually similar for our purposes that. You can think of this second issue as a kind of "super entrapment".)

Michael B. Mukasey's statements regarding waterboarding implicate both of these issues, and strike me as a perfectly defensible view of the law and policy. I submit that if you take a look at the larger context, you might even agree that they are correct answers. Please do so. Even if you disagree with his decision, you'll at least be arguing on the relevant issues (right now, you're not).

None of this, by the bye, excuses President Bush for his signing statements or should be viewed as an argument to legitimize waterboarding. (As readers should know, I am anti-waterboarding.)

So, here's the relevant issue -- and it's not the issue identified by Hilzoy: Was it reasonable for employees at the

By "it's all talk" I just mean that the points of view he advances here, extreme as they are, are kind of moot, because they have no, and will never get any, traction in the real world.

The millions upon millions upon millions of observant Muslims in the world aren't sharpening their knives and dreaming of the day when they can spill my blood. They're going to work, paying their bills, and trying to get by, just like me.

The franchise will never, ever be limited once again to freeholding property owners. The nation will never, as a result, devolve into a plutocracy. It might do so for other reasons, but not because the franchise is too broadly held.

For better or worse, we won't be going back to getting by on the peas and hominy we grow in our little patch out back, or the squirrel meat we bring home with our 22 rifles, the way our grandparents and their grandparents did. Or, in my case, the way my father did, literally, including the squirrel part. Land's too expensive these days, and there are too many of us now. Those days are gone.

And, in spite of that, poor people will never learn to shut up, eat their rice and beans, and be grateful. They shouldn't do so, and they won't.

Bill's posts here don't bother me because the harsh, bleak world he conjures is just not that likely to every be a reality. Maybe in Guatemala, or Pakistan, or the Sudan. I haven't been to those places, so I can't say. But not here. So I don't worry about it.

There are lots and lots and lots of other things, things that are not at all improbable in the real world, that scare the hell out of me.

Von, what legal opinion could possibly have persuaded the torturers that waterboarding did not cause "severe physical suffering," and thus gotten them off the hook on the intent to inflict same?

Do you really mean to argue that point? I trust not, but I hesitate to telepathize.

On the 2d point, I would want to see some case law that actually prohibits the reversal you criticize. Sitting around and arguing what the law *oughta* be is one thing; I think the more relevant question today is, what does the law actually say?

Von, what legal opinion could possibly have persuaded the torturers that waterboarding did not cause "severe physical suffering," and thus gotten them off the hook on the intent to inflict same?

They had an opinion from the DOJ that essentially said that "severe physical suffering" (or whatever the terms in the statute are) have a particular definition in the law, here it is (organ failure or somesuch), and, oh, by the way, waterboarding doesn't meet the definition.

On the 2d point, I would want to see some case law that actually prohibits the reversal you criticize. Sitting around and arguing what the law *oughta* be is one thing; I think the more relevant question today is, what does the law actually say?

On the second point, assume that there is no law or case on point. I don't have time to do the research and, in any event, (i) this isn't the right forum and, (ii) like all legal matters, it can get convoluted. Assuming that all I'm advancing is an issue of correct policy. What's wrong with the policy that I've outlined?

"Would John Mitchell's DOJ signing off on Watergate have exonerated Nixon et al.?"

Although it's tangential to the point of the DOJ signing off, just for the record, Attorney-General John Mitchell did sign off on much of Watergate, though not his underlings in an official opinion, and he and was convicted of perjury, obstruction of justice, and was sentenced to two and a half to eight years in prison.

I know you know this, but I just like to enjoy the memory now and again. Even if he did get medical parole after 19 months.

Excellent point, John. But data reduction is not quite the same as data analysis. I don't need to know that I'm a slobbering right-wing global-warming-denialist, God-bothering, Bush-apologist monster so much as how I got to be this way.

Advice of counsel is a mitigating factor, not a defense. But that presupposes that the rule of law is being applied.

Where are you getting this? The defense to a criminal complaint is "I lacked the required mens rea" (essentially, I lacked the required ciminal intent). Advice of counsel can be one reason, among many, as to why you lacked the required mens rea.

And it's not really a defense -- sorry for suggesting otherwise -- but rather a charge that the government hasn't proven its case.

von

p.s. you may be thinking of the civil context, in which advice of counsel can constitute a defense to enhanced penalties. For instance, advice of counsel can be a defense to a charge of willful patent infringement. You still infringe (and thus still have to pay), but you aren't subject to enhanced damages or other penalties.

The President (or anyone, really) gets an opinion from someone in the OLC that something he wants to do is legal, even though there is a very strong argument to be made that it is not. With that opinion in hand, he goes forward and does the questionable deed, whatever it is.

Subsequently, the DOJ will refuse to pursue a criminal investigation into the President's act, because the OLC is part of the DOJ, and it wouldn't be cricket for the DOJ to say OK with one hand and prosecute with the other.

And, of course, the President is the person who hires folks into the OLC and the DOJ generally.

von, can you tell me with a straight face that you don't see a problem here?

The practical consequence of your argument seems to be that, with one well chosen hire, the President can do whatever the hell he wants.

Whether or not one uses the term 'tyrant', Bush, through Mukasy, is clearly asserting monarchical privilege (hint: one need not be a king in order to be a monarch).

To pose it another way, since Article 4, Section 4 guarantees the states a republican form of government, and now that Mukasy is admitting that the president is above the law, when do we get to call the constitutional convention? 'cause I got some ideas for the new one...

They had an opinion from the DOJ that essentially said that "severe physical suffering" (or whatever the terms in the statute are) have a particular definition in the law, here it is (organ failure or somesuch), and, oh, by the way, waterboarding doesn't meet the definition.

Right, and I suppose that had any of Stalin's flunkies felt qualms about what they were doing in the Lubyanka basement, the Justice Commissar or whoever could've given them something to the effect that beating people with rubber hoses wasn't really hurting them.

But "severe physical suffering" is not the same as "organ failure" -- it just isn't, even to the layman -- and I don't think that anyone was entitled to rely on that opinion, any more than they could rely on an opinion that blacks or Jews aren't really human the way whites are.

(The really really bad person here, in a way, is the CIA counsel who completely failed to protect his agency's people -- he should've looked at that op and realized that (1) it was garbage, and (2) his people were going to be screwed. But obviously his loyalties lay elsewhere.)

von, can you tell me with a straight face that you don't see a problem here?

Of course I see a problem here: The whole thing is premised on lawyers in the DOJ mataining allegiance to the office of the president rather than the person of the president. The DOJ memos should never have been written, as the DOJ has itself effectively conceded by disavowing them. But one wrong doesn't justify a second wrong, and it would be wrong to whipsaw defendants by, among other things, having the DOJ prosecute them for following the advice of the DOJ.

"The defense to a criminal complaint is "I lacked the required mens rea" (essentially, I lacked the required ciminal intent). Advice of counsel can be one reason, among many, as to why you lacked the required mens rea."

IANAL, but I didn't think you had to have criminal intent to commit a crime. All you had to have was intent to commit the action that was criminal. Or is ignorance of the law now a defense?

IAAL, although not a criminal lawyer, and I'm having a hard time thinking of a criminal context in which advice of counsel would be a defense. It's not my area, so I'm unsure, but I'm not coming up with much offhand.

IANAL, but I didn't think you had to have criminal intent to commit a crime.

You are right, except for specific-intent crimes, of which torture is not one. That's why Von and I are discussing whether a particular element of torture -- the infliction of severe physical suffering -- is the kind of thing that you could believe you weren't doing, on advice of counsel.

and I'm having a hard time thinking of a criminal context in which advice of counsel would be a defense

Lederman's cases in his post don't hold up so well, it appears from comments in that thread.

But one wrong doesn't justify a second wrong, and it would be wrong to whipsaw defendants by, among other things, having the DOJ prosecute them for following the advice of the DOJ.

I don't know; I think this is more effectively argued on the punishment side of things. I think there have been fraud cases where people still were convicted, even when they got "advice" reassuring them, because a reasonable person could see they were doing wrong.

"IAAL, although not a criminal lawyer, and I'm having a hard time thinking of a criminal context in which advice of counsel would be a defense. It's not my area, so I'm unsure, but I'm not coming up with much offhand."

I am surprised that any tax-protestor crap was even allowed into evidence. You can practically be sanctioned for even making those arguments on appeal. And it's absurd that someone with Snipes's money couldn't get reputable tax advice.

If the feds didn't move to exclude that, I dunno why; if they did, they should appeal.

Whether or not one uses the term 'tyrant', Bush, through Mukasy, is clearly asserting monarchical privilege

In fact, the original usage of the word "tyrant" by the Greeks, was for someone that acted as a monarch, without being a legitimate king.

Wikipedia:

The word "tyrant" then carried no ethical censure; it simply referred to anyone who illegally seized executive power in a polis to engage in autocratic, though perhaps benevolent, government, or leadership in a crisis.

I'd say that rather accurately describes Bush, with the exception of the "benevolent" part.

Just when I was despairing that not even the NYT was reporting on this, someone offered up an inspired idea to right this horrendous wrong. Elect Obama, and then let him sic Attorney General Edwards on the lot of them.

IANAL, but I didn't think you had to have criminal intent to commit a crime. All you had to have was intent to commit the action that was criminal. Or is ignorance of the law now a defense?

CW, my phrasing was a confusing in the comment that you cite. For most crimes, you have to have the specific intent to commit the elements of the offense -- but not necessarily intend (or even know) that you are commiting a crime. (I'm clearer in earlier comments.)

and I'm having a hard time thinking of a criminal context in which advice of counsel would be a defense

I can think of many, but perhaps that's just a reflection on my practice. Let's say that you're a compliance officer in a publicly-run company charged with mail fraud for failing to disclose to the board of directors a misdirected payment to an officer of a corporation. There are two classic elements of mail fraud: (1) devising or intending to devise a scheme to defraud and (2) use of the mail for the purpose of executing, or attempting to execute, the scheme. Would you have meet the first element if your corporate counsel told you that the payment wasn't misdirected, but authorized under the law (in which you were not an expert)?

The defense to a criminal complaint is "I lacked the required mens rea" (essentially, I lacked the required ciminal intent). Advice of counsel can be one reason, among many, as to why you lacked the required mens rea.

You're wrong on this one, Von. Mens rea applies to the intent to do the act - not intent to commit a crime. It may be different in SEC or IRS investigations, but in a criminal case this is no defense.

The only way mens rea would be negated was if they didn't intend to waterboard a person.

Well, that's just how the statute's phrased, so that "intent to defraud" is an element of mail fraud.

Torture's defined as:

an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control

The intent just goes to "are you trying to severely hurt this person?"

N.b. the "under color of law" language; I wonder what relevance if any that might have to the "advice of counsel" issue. Someone's raised the comparison to Bivens actions -- just because the feds *think* they're acting legally, doesn't matter. And section 1983 requires "under color of law" too.

If it's not appropriate to prosecute those who took the advice, because that would be, in von's term, "whipsawing" them, then what about prosecuting the DOJ lawyers who gave the advice?

I have to say that while I see von's argument, I've also seen DOJ defenders argue that you shouldn't go after lawyers for giving legal advice, even if you think the advice is wrong. So we end up going in circles. Can't prosecute the perps because they had legal advice. Can't prosecute the lawyers because all they did was give legal advice.

So where's the stopping point? Is no one culpable? If so,then Russell is absolutely correct that

with one well chosen hire, the President can do whatever the hell he wants.

I'm really fascinated by the conflict of opinion here. I lean towards two things:

(1) You simply cannot have it be the case that the AG or President implicitly hand out pardons along with their legal advice.

(2) It's pretty clear that prosecuting those people who took the advice (or the orders) may not be the best way to rectify (1), given the considerations von and Lederman raise.

I think what we have here is a real problem of political organization, but we haven't found the right remedy. Or to put it in terms from Hilzoy's 11:55, (b) surely is more important than (a) as she says, but is prosecuting these people either a fair or effective or even least harmful way of achieving (b)?

The whole thing is premised on lawyers in the DOJ mataining allegiance to the office of the president rather than the person of the president.

There needs to be something stronger in place than just relying on people "doing the right thing".

But one wrong doesn't justify a second wrong

The problem is, this isn't just a matter of prosecuting whoever did the actual interrogation. Personally, I'd be fine with an amnesty for whoever did the actual interrogation. Everyone was freaked out, the law and procedures involved were being questioned and re-evaluated, and waterboarding, specifically, was apparently used in only a few controlled situations.

I'm not interested in hanging a handful of CIA guys from the nearest yardarm to make the point that we abhor torture. Making it clearly and unambiguously illegal and, as an explicit matter of policy, something we don't do, will satisfy me just fine.

The problem here is that a precedent is being set that allows the President to avoid any legal oversight of operations that occur within the executive. That is, on its face, a disaster.

It is, IMO, way, way, way more important that a clear limit to executive authority be affirmed than that illegal conduct be given a pass on some principle of "fairsies". I mean, *way* more important.

You're wrong on this one, Von. Mens rea applies to the intent to do the act - not intent to commit a crime. It may be different in SEC or IRS investigations, but in a criminal case this is no defense.

Fledermaus, as I noted above, I was a little loose with my language in the passage that you quote. As you'll see from my initial comment and exchange with Anderson, however, I am addressing the correct issue.

The intent just goes to "are you trying to severely hurt this person?"

Yes, and the DOJ opinion explained what that (supposedly) means under the law.

I think that your point regarding "under color of law" is interesting.

You're wrong on this one, Von. Mens rea applies to the intent to do the act - not intent to commit a crime. It may be different in SEC or IRS investigations, but in a criminal case this is no defense.

Fledermaus, as I noted above, I was a little loose with my language in the passage that you quote. As you'll see from my initial comment and exchange with Anderson, however, I am addressing the correct issue.

The intent just goes to "are you trying to severely hurt this person?"

Yes, and the DOJ opinion explained what that (supposedly) means under the law.

I think that your point regarding "under color of law" is interesting.

...estoppel. As a general rule, we don't want the DOJ to say that X is illegal and then, reversing itself, go back and prosecute everyone who followed its advice.

So, is it an improper conflict of interest for the same DOJ to give advice to the executive, and to pursue prosecutions against members of that same executive? Should there not be at least a mini-DOJ under another branch of government that can pursue the executive? Or is that not what the legislature is supposed to do?